The Eleventh Amendment to the Constitution provides that “[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States…”.1U.S. CONST. amend. XI. Put simply, Eleventh Amendment proscribes citizens from bringing lawsuits against states in federal courts. However, the case of Enbridge Energy, LP, et al. v. Whitmer, et al.,22025 U.S. App. LEXIS 9645. explores a situation where the Eleventh Amendment doesn’t apply.
Enbridge Energy, LP (hereinafter “Enbridge”) owns and operates a pipeline which transports petroleum products to refineries in the Midwest and Canada.3Id. at 1-2. Enbridge was granted a pipeline easement by the State of Michigan in 1953, subject to due care and safety provisions.4Id. at 2. Additionally, the terms of the easement provide that Michigan can terminate the easement if, after written notice of a breach, Enbridge fails to correct any breach.5See Id. at 3-4. Beginning in 2019, Michigan State officials have been trying to revoke the easement, claiming that Enbridge breached the easement and that the pipeline presented an unacceptable risk of an oil spill.6Id. at 5. Consequently, the Michigan governor, Gretchen Whitmer, issued a notice of revocation and termination, and filed a lawsuit in Michigan state court.7Enbridge Energy, at 5. Following the suit in state court, Enbridge filed a suit in federal court and successfully removed the governor’s suit to federal court.8Id. at 6. Subsequently, the governor voluntarily dismissed the case, but did not withdraw the notice of revocation.9Id. at 6. An analysis of Enbridge’s federal lawsuit follows.
In federal court, Enbridge sued two Michigan officials, in their official capacities, claiming that the officials’ efforts to shut down the pipeline violated both federal law and the Constitution.10Id. at 7. They base their complaint on three different grounds; the first is that the officials are violating the Supremacy Clause, as state pipeline standards are generally preempted by the Federal Pipeline Safety Act; second, Enbridge asserts the officials are violating the Interstate Commerce Clause by unreasonably burdening interstate commerce; finally, Enbridge alleged that the Michigan officials have violated the Foreign Commerce Clause and the related Foreign Affairs Doctrine.11Id. However, before the court was able to address the validity of these claims, the state officials moved to dismiss the suit, arguing that the Eleventh Amendment bars the court from hearing Enbridge’s claims.12Id. at 8. The district court held that the Eleventh Amendment did not bar the suit, the officials timely appealed this decision.13Id.
In reviewing the Eleventh Amendment motion to dismiss de novo, the Sixth Circuit Court began with the Ex parte Young doctrine.14Id. at 8-9. In Ex parte Young, the Supreme Court held, generally, that when a federal court commands a State to refrain from violating federal law, the Eleventh Amendment does not apply.15Enbridge Energy, at 9-10. Under the Ex parte Young doctrine, there is a two-part analysis to determine if a specific suit is subject to the Eleventh Amendment protections.16Id. The first part of the analysis is whether there is an allegation of a present violation of federal law.17Id. Second, the analysis turns on whether the suit seeks only “equitable and prospective relief” against a named state official.18Id. The Sixth Circuit notes that Enbridge’s complaint facially meets these two requirements of Ex parte Young.19Id. at 10. However, the officials still contend that the suit is still barred by the Eleventh Amendment because the effect of the relief sought indicates that the suit is against the State, rather than the officials.20Enbridge Energy, at 10-11.
To illustrate that Enbridge’s suit was in fact against the State, the defendant officials advance two different reasonings. The first reasoning that the defendant’s advanced was that the continuation of the pipeline would unduly infringe on the State’s sovereignty interests in its property.21Id. at 11-12. The defendants relied on the case of Idaho v. Coeur d’Alene Tribe of Idaho, wherein the Coeur d’Alene Tribe sought a declaration to establish the exclusive use and occupancy to land in Idaho.22521 U.S. 261, 265 (1997). The court here quickly distinguished this case, because the requested relief of Enbridge is not as intrusive as the complete extinguishment of a state’s property rights that the Coeur d’Alene Tribe requested.23See Enbridge Energy, at 13-15. The second reasoning advanced by the defendants was that Enbridge was requesting specific performance of a State contract, showing that the suit is, in fact, against the State.24Enbridge Energy, at 20-21. The Sixth Circuit quickly disposed of this issue, because Enbridge did not bring this suit under contract, but rather Enbridge alleged that the defendants’ actions to stop the pipeline violated federal law and the Constitution.25Id. at 21. Ultimately, the Sixth Circuit held that Enbridge’s lawsuit is not barred by the sovereign immunity provision of the Eleventh Amendment.26Id. at 26-27.
This case will now proceed back down to the district court, where it will be determined if the Michigan officials have violated federal law and the constitution. However, this case illustrates exactly how a pipeline operator would need to approach a lawsuit without invoking the sovereign immunity of the Eleventh Amendment.
Law clerk Matthew Gibson contributed to this article.
Andrew represents companies active in the oil and gas industry in both litigation and arbitration matters, from risk management to trial. He also advises clients on compliance and regulatory issues and handles proceedings in front of administrative agencies / governmental bodies, including the Ohio Department of Natural Resources and the Ohio Department of Commerce.
In addition to his energy practice, Andrew has broad experience in commercial and business litigation, including breach of contract / lease claims, construction disputes, non-compete / non-solicitation disputes, trade secrets, business torts, and real property-related claims. He is OSHA certified in Construction Safety and Health and has drafted and reviewed numerous construction contracts.